Citation Nr: 1324447 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-45 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence exists to reopen a claim of entitlement to service connection for headaches (including, but not limited to "migraine headaches" and "myofascial headaches") and if so, whether service connection may be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from February 1989 to December 1993. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has reviewed the contents of the Veteran's Virtual VA (electronic) file and found evidence pertinent to this appeal that is not in the claims file. The Veteran waived RO consideration of evidence submitted after the issuance of the October 2010 Statement of the Case. FINDINGS OF FACT 1. Prior to receipt of her December 2005 petition to reopen her claim, service connection for a headache disorder was last denied in a February 2004 rating decision. The Veteran was then appropriately advised of her appellate rights, but did not file a timely appeal. 2. Evidence received with the December 2005 petition to reopen the claim of service connection for a headache disorder is not cumulative or redundant of the evidence of record at the time of the February 2004 decision and raises a reasonable possibility of substantiating the claim. 3. With resolution of the benefit of the doubt in her favor, the Veteran's headache disorder was caused by active military service. CONCLUSIONS OF LAW 1. The February 2004 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 2. New and material evidence has been submitted to reopen the claim. 38 U.S.C.A. § 5108 (West 2002& Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for the establishment of service connection for a headache disorder are approximated. 38 U.S.C.A § 5107(b) (West 2002); REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38 of the United States Code ("38 U.S.C.A."), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court/CAVC) (as noted by citations to "Vet. App."). As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, given the granting of the benefit sought, discussion of the VCAA and its application to this matter would not assist the Veteran and is not otherwise necessary. The Veteran first sought service connection for a headache disorder in January 1994. The claim was denied in a July 1994 rating decision, and the Veteran was apprised of her appellate rights but did not appeal. She sought to reopen the claim by application received in September 2000, (and the RO thereafter considered the claim as an original application and not requiring new and material evidence for its reopening). Service connection was denied by rating decision forwarded to the Veteran on February 17, 2004. The Veteran filed a timely notice of disagreement. She was issued a Statement of the Case on April 11, 2005, and advised that in order to complete her appeal, she was required to file her appeal within 60 days of the forwarding letter (or, June 11, 2005); or within the remainder of the one year period from the date of the letter notifying her of the action that she had appealed (or, February 17, 2005). See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101 , 20.200-20.202, 20.302 (2012). The Veteran's appeal was received by the RO on December 8, 2005, approximately 10 months untimely to complete her appeal. The RO then construed the substantive appeal as further petition to reopen her claim. After appropriate development and other administrative processing, the RO found in a March 2006 rating decision that the Veteran had not submitted new and material evidence to reopen the claim and denied her application. The Board will presently reopen and grant the claim. The Veteran's original claim was denied on the bases that there were no diagnosis or complaints of a headache during her military service; and no complaints or such diagnosis within one year of separation. Although the RO found that the Veteran began to have headaches approximately 3 years after service, the Veteran had submitted letters dated in February 2002 and November 2004 from Harold M. Friedman, D.O., in which the physician essentially reported that relying on memory, he recalled treating the Veteran for headaches within approximately one year from her discharge from service. The RO apparently rejected the Veteran's account that her headaches began within one year of service, because she had (equally apparently) had advised a March 2003 VA examiner that her headaches only began 3 months prior to the examination - or, January 2003. With her December 2005 substantive appeal construed as an application to reopen her previously denied claim, the Veteran submitted several lay statements from family members, friends and co-workers, in substance indicating their observations that the Veteran had headaches of varying severity beginning at some point in 1994 - within one year after he discharge from service. If new and material evidence has been submitted since the prior final denial of this claim, then the claim must be reopened and the former dispositions reconsidered. 38 U.S.C.A. § 5108. When determining whether a claim should be reopened, the Board must determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108. According to VA regulation, "new" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If VA determines the evidence is new and material, it may evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when determining whether the evidence is new and material. It does not also apply when determining the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them). Beginning in December 2005, the lay statements are new because they were not previously of record. They are also "material" because they tend to substantiate the Veteran's allegation of having had continuous headaches since her discharge from active duty. Although the Veteran denied then having, or ever having had headaches in her September 1993 service department pre-discharge physical examination, her current contention is not that she had headaches in service, but shortly after service. The non-VA, VA, and SSA medical records all reflect ongoing treatment for the previously diagnosed headaches both noted to be of migraine and myofascial variety. Given the presumed credibility of these allegations, this additional evidence raises a reasonable possibility of substantiating the claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (holding that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even when it would not be enough to convince the Board to grant a claim). Accordingly, the Board concludes that new and material evidence has been submitted to reopen this previously denied and unappealed claim. 38 U.S.C.A. § 5108. Moreover, the Veteran's contentions have been consistent throughout the course of her application to receive service connection for the headache disorder. They are now supported by both her treating physician, and various laypersons who are competent to report readily-observable facts. Most importantly, there is no evidence on the present record to dispute the Veteran's factual allegation of having had continuous headaches since service. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). ORDER New and material evidence has been received and the petition to reopen the claim of entitlement to service connection for headaches is granted. Service connection for a headache disorder variously diagnosed is granted. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs